#### In the Matter of the Application of Richard T. Lynch and Edward B. La Fetra, Respondents, for a Writ of Peremptory Mandamus against J. Gabriel Britt and Others, as Custodians of Primary Records and as Commissioners of Elections of the City of New York, and Patrick J. Scully, as City Clerk of the City of New York, Appellants.

First Department,

August 26, 1914.

New York City Court — section 1346 of the Greater New York charter construed—when vacancy exists in office of City Court justice — constitutional law—validity of election of City Court justice for full term in even-numbered year.

The Legislature, by section 1346 of the Greater New York charter, which took effect on the 1st day of January, 1898, in providing that the justices of the City Court then in office should continue to hold office “until the expiration of them respective terms,” but that them successors “shall be *elected*for and hold office for the period of ten years,” did not contemplate that the successors to the *individual justices*then in office should be elected for ten years, but that those elected after the expiration of the terms of office then existing should hold for ten years.

The terms of two city judges elected in 1898 after the death of one incumbent and resignation of another considered, and *held,*one vacancy now exists in the office of City Court justice, which the electors are entitled to fill at the next general election.

An election of justices of the City Court of New York for a full term in an even-numbered year would be invalid under the provisions of section 3, article 12 of the State Constitution.

Ingraham, P. J., and McLaughlin, J., dissented.

Appeal by the defendants, J. Gabriel Britt and others, from an order of the Supreme Court made at the New York Special *696Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1914, granting relators’ motion for a peremptory writ of mandamus requiring those of them who are custodians of the primary records and commissioners of elections of the city of New York and the city clerk of said city to refrain from taking any proceedings for the nomination or election of successors to the petitioners as justices of the City Court of the City of New York at the ensuing primary and general elections for the year 1914.

*Samuel J. Rosensohn,*for the appellants.

*Herbert C. Smyth [Frederic C. Scofield*with him on the brief], for the petitioners.

Laughlin, J.:

The majority opinion of the Court of Appeals in *Matter of Trounstine*v. *Britt*(212 N. Y. 421) holds that the Legislature, by section 1346 of the G-reater New York charter (Laws of 1897, chap. 378), which took effect on the 1st day of January, 1898, in providing that the justices of the City Court then in office should continue to hold office “until the expiration of their respective terms,” but that their successors “shall be elected for and hold office for the period of ten years ” contemplated, not that the successors to the *individual justices*then in office should be elected for ten years, but that those elected after the expiration of the terms of office then existing should hold for ten years. (See, also, Laws of 1901, chap. 466, § 1346.) On this appeal we are bound by that opinion and have only to apply it to the facts presented.

The petitioners were both duly elected at the general election in 1908, after said section of the Greater New York charter had taken effect. There were at that time unquestionably two vacancies in the office of justice of the City Court. One was caused by the death of Justice McCarthy on the 6th day of February, 1908. He concededly had been duly elected at the general election in 1907 for a term of ten years, commencing January, 1908. The other was owing to the fact that it had been assumed that Justice Hascall who had been elected in 1898 to fill the vacancy caused by the resignation of Justice Van *697Wyck in December, 1897, after having heen duly elected for the term of six years, commencing on the 1st day of January, 1896, the vacancy in the interim having been filled by appointment, was elected for the term of ten years instead of for the unexpired term to which Justice Van Wyck had been elected, and Justice Hascall continued to hold the office under his certificate of election until his death, March 25, 1908. Under the decision of the Court of Appeals in *Matter of Trounsttne*v. *Britt (supra),*Justice Hascall’s term expired on the 31st day of December, 1901, and the succeeding term which had been lengthened to ten years expired on the 31st day of December, 1911. Therefore the election of neither' of the petitioners in 1908 was for a full term and that election in an even-numbered year would have been invalid if it had not been to fill vacancies. (State Const, art. 12, § 3.) One of the petitioners was elected for. the remainder of a term expiring December 31, 1911, and the other was for the remainder of a term expiring December 31,1917. It having been assumed that both were elected for full terms of ten years, it is contended that it is not possible to decide to which vacancy either of the petitioners was elected. The learned Special Term granted the writ on the theory that an election will be futile for the reason that neither the nomination nor the election of either petitioner shows to which vacancy he was elected. We are of opinion that one vacancy in the office now exists and that the electors are entitled to fill it at the next general election. We are not now concerned with the question as to which of the petitioners’ term of office has expired or whether it will be possible to decide that question after the election of a successor to one of them. Indeed the question may never arise for one of them may be elected to the vacancy.

It follows that the order should be reversed and motion denied.

Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.

Ingraham, P. J. (dissenting):

Upon no theory in this case is there a vacancy in the office of justice of the City Court to be filled at the general election in 1914.

*698The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

McLaughlin, J., concurred.

Ordered reversed, with ten dollars costs and disbursements, . and motion denied, with ten dollars costs.